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Friday, May 10, 2013

Judge Kavanaugh, concurring, in Ayissi-Etoh v. Fannie Mae, No. 11-7127, 2013 U.S. App. LEXIS 6870
(D.C. Cir. April 5, 2013) emphatically stated that a single use of the “N word”,
in an oral statement from a supervisor to an employee, by itself, “would establish
a claim for hostile work environment for the purposes of federal anti-discrimination
laws.”In that case, it was alleged that
a Fannie Mae executive, Ms. Jaqueline Wagner, denied the African-American
plaintiff a raise because Fannie Mae was already “paying [him] a lot of money”
for a “young black man,” and it was further alleged that another Fannie Mae
official, Mr. Thomas Cooper, once referred to plaintiff, using the “N word”.Specifically, it was alleged that Mr. Cooper,
at the end of a heated meeting with plaintiff, yelled at him, “get out of my
office, n…..”.

Chief Judge Garland and Judge Griffith, in a per curiam opinion, concluded that a
reasonable jury could find the aforesaid behavior sufficiently severe or pervasive
as to create a hostile work environment, recognizing that Mr. Cooper had used
“a deeply offensive racial epithet…”.The per curiam opinion,
recognizing that “perhaps no single act can more quickly alter the conditions
of employment” than “the use of an unambiguously racial epithet such as ‘n…..’
by a supervisor.Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th
Cir. 1993) (internal quotations omitted).”Thus, the per curiam opinion
recognized that “[t]his single incident might well have been sufficient to
establish a hostile work environment.”“But,” as the per curiam
opinion notes, “there was still more here.”The court went on to discuss, among other items, Ms. Wagner’s alleged
“young black man” comment; the fact that the plaintiff had “to continue working
with Cooper for nearly three months, until Cooper was ultimately fired”; that
this working situation “made Ayissi-Etoh ill and caused him to miss work on at
least one occasion”; and that a reasonable jury could find that Fannie Mae
taking three months to fire Mr. Cooper did not constitute Fannie Mae promptly
correcting the alleged hostile behavior.Thus, the per curiam opinion
found that the plaintiff had provided “sufficient evidence for a reasonable
jury to find Fannie Mae liable”, and thus reversed the District Court’s entry
of summary judgment against the plaintiff on his hostile work environment
claim.

Judge Kavanaugh, in his concurring opinion, disagreed with
Fannie Mae’s argument that the “singular [N word] comment” was “insufficient to
establish an actionable hostile work environment.”As Judge Kavanaugh put it, “[i]n my view,
Fannie Mae is wrong on the law and wrong on the application of the law to the
alleged facts of this case.The alleged
statement by the Fannie Mae Vice President to Ayissi-Etoh by itself would
establish a hostile work environment for purposes of federal
anti-discrimination laws.”While Judge Kavanaugh
conceded that “cases in which a single incident can create a hostile work
environment are rare,” he argued that “saying that a single incident of
workplace conduct rarely can create a
hostile work environment is different from saying that a single incident never can create a hostile work
environment.”Judge Kavanaugh cited a
number of cases in which single verbal (or visual) incidents were found to be
sufficiently severe to justify a finding of a hostile work environment, such as
Reedy v. Quebecor Printing Eagle, Inc.,
333 F.3d 906, 909 (8th Cir. 2003) (racially hostile graffiti that amounted to a
death threat); and Jackson v. Flint Ink
North American Corp., 370 F.3d 791, 795 (8th Cir. 2004), rev’d on reh’g on other grounds, 382
F.3d 869 (8th Cir. 2004) (a burning cross).

We have also previously written other articles regarding
whether and when single incidences of harassment have been held to satisfy the “sufficiently
severe or pervasive” standard of a hostile work environment claim – see, for
example, here,
and here.

The second to last paragraph in Judge Kavanaugh’s opinion,
which cites to authorities including case law, a dictionary, and To Kill a Mockingbird, is quoted in full
here, because to paraphrase it would be to do a disservice to Judge Kavanaugh’s
strong and succinct argument:

It may be difficult to fully
catalogue the various verbal insults and epithets that by themselves could
create a hostile work environment. And there may be close cases at the margins.
But, in my view, being called the n-word by a supervisor — as Ayissi-Etoh
alleges happened to him — suffices by itself to establish a racially hostile
work environment. That epithet has been labeled, variously, a term that “sums
up . . . all the bitter years of insult and struggle in America,” Langston Hughes, The Big Sea 269 (2d
ed. 1993) (1940), “pure anathema to African-Americans,” Spriggs v. Diamond
Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001), and “probably the most
offensive word in English,” Random House
Webster's College Dictionary 894 (2d rev. ed. 2000). See generallyAlex Haley, Roots (1976); Harper Lee, To Kill a Mockingbird
(1960). Other courts have explained that “perhaps no single act can more
quickly alter the conditions of employment and create an abusive working environment
than the use of . . . [the “N word”] by a supervisor in the presence of his
subordinates.” Spriggs, 242 F.3d at 185. No other word in the English
language so powerfully or instantly calls to mind our country’s long and brutal
struggle to overcome racism and discrimination against African-Americans.

A tip of the hat to Judge Kavanaugh for saying what needed
to be said.

For more resources on this topic, see:

(a)The following article (here)
regarding a new study by Professor Ashleigh Shelby Rosette of Duke University’s
School of Business, exploring workplace racial slurs. You can also find the
full study here
(subscription required); and

(b)The following 2003 article (here) by Debra S.
Katz and Alan R. Kabat of Bernabei & Katz, PLLC, on Harassment in the
Workplace, particularly the “Single Incident Harassment” section, starting at
page 25 of the article.

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About Me

Robert Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over forty years. He has represented clients in individual and class actions. He has represented clients in employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims among others. He counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated literally thousands of severance agreements. He has represented clients in practically every industry and profession, including government employees, employees in the hospitality industry, the high tech/computer, government contractors, transportation, entertainment, sports, financial services, trade associations, and academia.

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